Senator demands answers on Swartz prosecution from Obama’s top lawyer

Sen. John Cornyn (R-TX) suspects the Swartz case may have been retaliation.

Political pressure over the prosecution and untimely death of Aaron Swartz seems to be increasing rather than fizzling out. On Tuesday, Rep. Zoe Lofgren (D-CA) introduced "Aaron's Law," which would reform the Computer Fraud and Abuse Act that was used to prosecute Swartz. Another member of the House Judiciary Committee, Darrell Issa (R-CA), said he wanted to investigate the actions of the US Attorney who authorized the prosecution, Carmen Ortiz of Massachusetts.

Ortiz responded shortly after that, saying her office's prosecution was "appropriate" and reasonable. Her attorneys were willing to let Swartz serve just six months in a "low-security setting," she wrote.

That statement has hardly put the issue to rest. If anything, Ortiz's defense seems to be adding fuel to the fire.

Today, another key lawmaker is demanding more information about the prosecution—a lot more information. Sen. John Cornyn (R-TX) sent a letter this morning to Attorney General Eric Holder, suggesting the case against Swartz may have been retaliation for prior investigations of Swartz, or his use of FOIA.

Cornyn and Holder have a history of bad blood, and their past disputes have had a partisan slant to them. In a public hearing last year, Cornyn actually demanded that Holder resign because he wasn't forthcoming enough about Operation Fast and Furious, a sting operation that involved smuggling guns to Mexican drug cartels with the intention of tracing them. Holder was "failing and refusing to perform the duties of [his] office," and had "violated the public trust," Cornyn said then. Holder called Cornyn's complaints inaccurate and "political gamesmanship."

First, on what basis did the US Attorney for the District of Massachusetts conclude that her office's conduct was "appropriate?" Did that office, or any office within the Department, conduct a review? If so, please identify that review and supply its contents.

Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.

Third, what role, if any, did the Department's prior investigations of Mr. Swartz play in the decision of with which crimes to charge him? Please explain the basis for your answer.

Fourth, why did the US Attorney's office file the superseding indictment?

Fifth, when the US Attorney's office drafted the indictment and the superseding indictment, what consideration was given to whether the counts charged and the associated penalties were proportional to Mr. Swartz's alleged conduct and its impact upon victims?

Sixth, was it the intention of the US Attorney and/or her subordinates to "make an example" of Mr. Swartz? Please explain.

Finally, the US Attorney has blamed the "severe punishments authorized by Congress" for the apparent harshness of the charges Mr. Swartz faced. Does the Department of Justice give US Attorneys discretion to charge defendants (or not charge them) with crimes consistent with their view of the gravity of the wrongdoing in a specific case?

I remember Lofgren and Issa from the SOPA debates, which would likely have given them some exposure to Swartz before this happened, but did Cornyn have any prior exposure, or is he new to this whole thing?

I ask because the other people who have taken interest already probably knew/knew of him, and I was wondering if this was similar, or whether it's actually spreading to new parties who did not have prior associations with Swartz.

I mean this with utmost respect to Swartz, I really do, but wouldn't it be far more respectful to Swartz to leave his death out of this? It's very tragic what happened to him and I'm starting to get the impression the media and the government are using his death as some sort of point of focus, when it was what he did (and whether it was right or wrong) which is actually the point.

I think it's difficult to argue against the accusation that someone led someone else to kill themselves. The argument should be against wrong accusations, not the product of the accusations.

Again, all due respect to Swartz and his family. I just feel his life should be celebrated, not used as a point of argument.

I mean this with utmost respect to Swartz, I really do, but wouldn't it be far more respectful to Swartz to leave his death out of this? It's very tragic what happened to him and I'm starting to get the impression the media and the government are using his death as some sort of point of focus, when it was what he did (and whether it was right or wrong) which is actually the point.

I think it's difficult to argue against the accusation that someone led someone else to kill themselves. The argument should be against wrong accusations, not the product of the accusations.

Again, all due respect to Swartz and his family. I just feel his life should be celebrated, not used as a point of argument.

Moral panic legislation is best legislation, or so we seem to think in the US.

As someone who's theoretically represented by Cornyn, I'll say now that I disagree with that jackass on virtually all the issues that are of import to me. He lost my vote for good back with the whole retroactive telco immunity fiasco, and this new move sounds too much like he's using the Ortiz/Swartz debacle as fodder for some kind of rhetorical partisan play.

OTOH one thing about American politics is that it often gets to the right result for bizarrely inappropriate (or even "wrong") reasons--but as long as it still gets to the right result, we might just be better off just taking what we can get. :-/

This is getting very, very interesting. There is potential for significant political turmoil here. I would not be shocked if Ortiz was forced to resign before the end of the month.

Is Ortiz obligated to respond to this request from the senator?

From a legal standpoint - with merely a letter to Ortiz and absent a formal Congressional subpoena - no.

From a political standpoint, it may be in Ortiz's best interest to respond to some degree. At the end of the day, the US Attorney's Office is under the umbra of the Executive branch. Enforcement of the law is what the office is tasked to with and if Ortiz and her staff in Massachusetts believed a law was broken, which it was, then I see little reason Ortiz should take the letter and its overriding tone has being nothing more than political huffing and puffing. Especially if one were to track the government's zealous enforcement of cyber crime laws, including the CFAA.

Whether or not what Swartz did really amounted to a wrongful act worthy of punishment is a debate this Senator is seemingly ignoring. Criticizing an official who, by the very nature of her job description, is to enforce the laws on the books is clearly the wrong course of action.

I get the impression that politics is about finding the right carrot to get what you want, and no carrot is off limits.

That being said, this seems to be the general reaction of government & media to public outrage. Gov't and media want to look like they're respecting the situation by doing something. That something happens to be usually beneficial to themselves.

I mean this with utmost respect to Swartz, I really do, but wouldn't it be far more respectful to Swartz to leave his death out of this? It's very tragic what happened to him and I'm starting to get the impression the media and the government are using his death as some sort of point of focus, when it was what he did (and whether it was right or wrong) which is actually the point.

I think it's difficult to argue against the accusation that someone led someone else to kill themselves. The argument should be against wrong accusations, not the product of the accusations.

Again, all due respect to Swartz and his family. I just feel his life should be celebrated, not used as a point of argument.

The only time something happens politically in the United States is when someone dies, unfortunately. If he accepted a plea, or went to prison, do you think there would be this much noise over it?

I mean this with utmost respect to the Newtown victims, I really do, but wouldn't it be far more respectful to the Newtown victims to leave their deaths out of this? It's very tragic what happened to them and I'm starting to get the impression the media and the government are using their deaths as some sort of point of focus, when it was what the shooter did (and whether it was right or wrong) which is actually the point.

<snip>

Again, all due respect to the Newtown victims. I just feel their lives should be celebrated, not used as a point of argument.

Not fixed, but altered for you.

Welcome to 'Murica, where knee-jerk reactions and leaping to conclusions are the only exercise our elected representatives get.

I get the impression that politics is about finding the right carrot to get what you want, and no carrot is off limits.

That being said, this seems to be the general reaction of government & media to public outrage. Gov't and media want to look like they're respecting the situation by doing something. That something happens to be usually beneficial to themselves.

At least something is being done about it. At least in my mind, it's better that something is happening instead of it just fizzling away and everyone forgetting. Better to make him a martyr for what he believed in than just a sad story of prosecutional overreach.

If there is anyone who would appreciate Aaron's death resulting in corrective action against a broken system, it is Aaron himself. Those of you crying "foul" and citing "disrespect for the deceased" obviously have zero understanding of Aaron and what he stood for.

I mean this with utmost respect to Swartz, I really do, but wouldn't it be far more respectful to Swartz to leave his death out of this? It's very tragic what happened to him and I'm starting to get the impression the media and the government are using his death as some sort of point of focus, when it was what he did (and whether it was right or wrong) which is actually the point.

I think it's difficult to argue against the accusation that someone led someone else to kill themselves. The argument should be against wrong accusations, not the product of the accusations.

Again, all due respect to Swartz and his family. I just feel his life should be celebrated, not used as a point of argument.

I have mixed thoughts on this but, playing devil's advocate, isn't it appropriate to use a concrete example of the real-life harm that results both from laws that are written so broadly they implicate nearly everyone and from the win-at-all-cost mindset of the entire US prosecutors corp?

I'm surprised that people are still not understanding that Aaron was being prosecuted under the extremely flawed Computer Fraud and Abuse act which was passed in 1986 by a congress that had little understanding of computers and the implications of the law they were passing at the time. Aaron was essentially being charged multiple felonies for violating Terms of Service. I think you'd be hard pressed to find a computer user who hasn't violated TOS at least once, most people probably don't even realize they have.

In addition the organization whose TOS were supposedly violated stated there was no harm done and they were not interested in pressing charges. Yet the prosecutor decided to expand the charges and aggressively pursue the case. Even at minimum they were trying to put someone away for several months (if not years) for violating Terms of Service. Remember we're talking about an attempt to convict on felony charges here... please think about this.

Anyone who cannot understand why this episode is important and reveals a deep flaw and injustice in the application of criminal law in this country needs to do some research into these issues. Based on many of the comments I've seen in the articles about Aaron Swartz, I think there are more than a few people missing out on this central point.

I hate to be the one to say this but Eric Holder and The Obama Administration need to fire this dumb arrogant witch because everytime she or her husband open their mouth, it does nothing but add fuel to the fire. They have managed to piss off a lot of people and the only recourse for the Obama Administration is to terminate her employment with the U.S. Attorney's Office.

It doesn't matter whatever piss-poor excuse comes flying out of her mouth. Unless she comes right out and admits that she might have been a little overzealous in her pursuit of Swartz, it's just going to create problems with the U.S. Attorney's office and this problem is going to get worse before it gets better.

I mean this with utmost respect to Swartz, I really do, but wouldn't it be far more respectful to Swartz to leave his death out of this? It's very tragic what happened to him and I'm starting to get the impression the media and the government are using his death as some sort of point of focus, when it was what he did (and whether it was right or wrong) which is actually the point.

I think it's difficult to argue against the accusation that someone led someone else to kill themselves. The argument should be against wrong accusations, not the product of the accusations.

Again, all due respect to Swartz and his family. I just feel his life should be celebrated, not used as a point of argument.

Do you think it's relevant to talk about gay kids being driven to suicide by relentless bullying? Aaron Swartz was bullied to death by the government. In my book he's a martyr for the freedom of information; he was fighting the same fight that Lawrence Lessig and the EFF and the internet community at large are fighting, only he literally died for it. I think that's highly relevant.

So, let me understand if I have this right. The Senator, whom is on record as a self professed "tough on crime" Republican, is now wondering if the President, whom he has called soft on crime, is actually too tough on prosecutions for him?

This is getting very, very interesting. There is potential for significant political turmoil here. I would not be shocked if Ortiz was forced to resign before the end of the month.

Is Ortiz obligated to respond to this request from the senator?

Issa will happily lunch a witch hunt against any politician with a (D) after their name. This is just more opportunism

Yeah, I've heard that Zoe Lofgren hates the D too, even though she has one.

EDIT: Past conduct by Issa aside, do you truly want to be on-record calling this a witch hunt?

Ms Lofgren introduced a bill to reform the law Swartz was prosecuted under, which so far has been about the only sensible political response I've seen.

As far as Issa and Cornyn, them making a circus out of this would not surprise me, Cornyn is already starting with the conspiracy theories dragging in the President. I see nothing to indicate it's anything but a mentally unstable young man taking a very bad reaction to some harsh treatment from a prosecutor.

From what I've read of Operation F&F, the agents were never smuggling guns to the cartel. They were observing the young kids that the cartel would send to Phoenix gun shows to make the purchases because they had no criminal history. Then the kids would give the guns to the cartel members. The kids were into street racing, hence the operation name.

The agents can't arrest the kids because they aren't breaking the law until they transfer to the cartel. The problem was the guns disappeared and one was later used to shoot and kill another agent. It seems disingenuous whenever I see someone say we gave guns to the cartel so that we could trace them.

I'm surprised that people are still not understanding that Aaron was being prosecuted under the extremely flawed Computer Fraud and Abuse act which was passed in 1986 by a congress that had little understanding of computers and the implications of the law they were passing at the time. Aaron was essentially being charged multiple felonies for violating Terms of Service. I think you'd be hard pressed to find a computer user who hasn't violated TOS at least once, most people probably don't even realize they have.

In addition the organization whose TOS were supposedly violated stated there was no harm done and they were not interested in pressing charges. Yet the prosecutor decided to expand the charges and aggressively pursue the case. Even at minimum they were trying to put someone away for several months (if not years) for violating Terms of Service. Remember we're talking about an attempt to convict on felony charges here... please think about this.

Anyone who cannot understand why this episode is important and reveals a deep flaw and injustice in the application of criminal law in this country needs to do some research into these issues. Based on many of the comments I've seen in the articles about Aaron Swartz, I think there are more than a few people missing out on this central point.

The problem with that whole argument though is that you seem to be advocating for a legal system that doesn't do it's job.

The job of the prosecutor's office is to bring to trial anyone who breaks the law. The fact that the law is bullshit doesn't change their job. Suggesting that the law simply be ignored because a bunch of ignorant fat white dudes in the mid 80's passed it doesn't work. It sets a precedent that we can flaunt the laws we don't like simply because we don't like them.

Swartz broke the law and the prosecutor brought charges. And if you look at the laws he broke a 6 month recommendation is actually below what normal sentencing guidelines would have called for. And yes, she was only going to RECOMMEND to the judge 6 months. His attorney could recommend whatever he wanted and the judge would decide. The prosecutor's job is to bring charges, the judge's job is to determine how much penalty to apply.

But it is most decidedly a bad idea for the legal system to ignore its duties simply because we don't like the law.

Fifth, when the US Attorney's office drafted the indictment and the superseding indictment, what consideration was given to whether the counts charged and the associated penalties were proportional to Mr. Swartz's alleged conduct and its impact upon victims?

Yeah !!

This is the ONLY case in recent years where the US AG office may have pushed extreme action on a few individuals in order to make an example for others.

In no way endorsing or condemning these - but the Jammie Thomas - Joel Tenenbaum - Kim Dotcom - were pretty much shafted in the same manner --- international Website and server seizures - over abundant financial fines (initial several million dollar totals) and so on. The Wikileaks situation comes to mind also.

The gov't is taking too much leeway and the citizens are letting them do it.

This is getting very, very interesting. There is potential for significant political turmoil here. I would not be shocked if Ortiz was forced to resign before the end of the month.

Is Ortiz obligated to respond to this request from the senator?

From a legal standpoint - with merely a letter to Ortiz and absent a formal Congressional subpoena - no.

From a political standpoint, it may be in Ortiz's best interest to respond to some degree. At the end of the day, the US Attorney's Office is under the umbra of the Executive branch. Enforcement of the law is what the office is tasked to with and if Ortiz and her staff in Massachusetts believed a law was broken, which it was, then I see little reason Ortiz should take the letter and its overriding tone has being nothing more than political huffing and puffing. Especially if one were to track the government's zealous enforcement of cyber crime laws, including the CFAA.

Whether or not what Swartz did really amounted to a wrongful act worthy of punishment is a debate this Senator is seemingly ignoring. Criticizing an official who, by the very nature of her job description, is to enforce the laws on the books is clearly the wrong course of action.

There is so much inaccuracy here. Swartz was accused of breaking the law, its innocent until proven guilty. And you seem to think that deciding whether someone broke the law is a simple yes/no checklist. It is not, there's a wide gray zone in between where it is the responsibility of the judges and juries to decide whether the line was crossed. It is not for Ortiz to be the judge and jury (decide it was crossed) and also play executioner (6 months jail). Based on her interpretation of CFAA, almost everyone has broken a law.

Again, all due respect to Swartz and his family. I just feel his life should be celebrated, not used as a point of argument.

I was listening to a great piece on this on NPR this morning. His family has actually jumped into the fray and is demanding change/heads/their pound of flesh. They're blaming the federal government for his death and they're not going to let it go.

What's especially egregious about all of this is what tinycritterfromthesea mentioned. Despite the fact that JSTOR declined to file a civil case against Swartz, the federal government pursued the charges and actually expanded on them.

As mentioned in the NPR piece, there's another discussion in all of this that needs to be had too. The fact of the matter is that federal prosecutors win 90% of their cases, so the chances of you getting off are extremely low if you get charged with a federal crime. This is likely why Swartz committed suicide instead of defending himself. There was a very, very good chance he was going to prison...for possibly a very long time. The interview also brought up the point that there are tons of other people who get sucked into this system too; and when they look at the odds against them, they often decide to settle whether they're guilty or not.

There is so much inaccuracy here. Swartz was accused of breaking the law, its innocent until proven guilty. And you seem to think that deciding whether someone broke the law is a simple yes/no checklist. It is not, there's a wide gray zone in between where it is the responsibility of the judges and juries to decide whether the line was crossed. It is not for Ortiz to be the judge and jury (decide it was crossed) and also play executioner (6 months jail). Based on her interpretation of CFAA, almost everyone has broken a law.

He would have proceeded to trial if he thought a judge and jury would agree with him. Unfortunately, there was overwhelming evidence he committed felonies.

I don't know about you, but I haven't broken into MIT's network numerous times over a period of months despite being repeatedly banned. I think I'm in the clear with Ortiz.

There is so much inaccuracy here. Swartz was accused of breaking the law, its innocent until proven guilty. And you seem to think that deciding whether someone broke the law is a simple yes/no checklist. It is not, there's a wide gray zone in between where it is the responsibility of the judges and juries to decide whether the line was crossed. It is not for Ortiz to be the judge and jury (decide it was crossed) and also play executioner (6 months jail). Based on her interpretation of CFAA, almost everyone has broken a law.

Your'e right, it's not her job to be the judge. But it is absolutely her job to bring charges when she thinks the law has been broken. Innocent until proven guilty does not mean charges don't get filed... it means after charges are filed you get your day in court.

And yes, there is a gray zone in whether a law is broken and it is up to a judge and jury to figure out. But the only way that happens is if the prosecutor brings a case before them. It's an adversarial system: she says he broke the law, he says he didn't and the judge/jury decide.